0120100971
05-24-2011
Marvin LaGarde, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marvin LaGarde,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100971
Agency No. ARRIA09SEP04406
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 4, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Quality Assurance Specialist at the Agency’s Research
Development and Engineering Center in Rock Island, Illinois. In September
2009, Complainant contacted the EEO Counselor regarding a claim of
discrimination. When the matter could not be resolved informally,
Complainant was issued a Notice of Right to file. On October 22, 2009,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the basis of reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 15, 2009, the Director mandated that he seek his own funds
for deployment; and
2. On April 7, 2009, Complainant’s supervisor sent him an alleged
badgering e-mail message stating that Complainant had violated the chain
of command regarding his resume for deployment.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
for failing to timely contact the EEO Counselor. The Agency found that
Complainant contacted the EEO Counselor on September 3, 2009, beyond
45 days from the most recent event on July 15, 2009. The Agency noted
that Complainant had engaged in prior EEO activity and was aware of the
timeframes. In addition, the Agency dismissed the complaint pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency
indicated that Complainant had settled two prior complaints on July 15,
2009, resolving the issues raised in the instant complaint.
Complainant appealed asserting that he had made several visits and phone
calls to the Agency’ EEO Office. Complainant stated that he was met
with resistance by the EEO Office as to assigning the matter to an EEO
Counselor. In addition, Complainant indicated that there were several
events that should have been included in his complaint dating back to
1999 through July 2009. We note that Complainant failed to provide
specific dates for these events. In addition, several of the incidents
from July 2009 involved funding for his deployment which was addressed
in a settlement agreement signed by the parties on July 15, 2009.
The Agency responded to the appeal. The Agency provided an affidavit
from an EEO specialist who stated that he was not aware of Complainant’s
contacts regarding the instant complaint. He noted that Complainant had
been a frequent visitor to the EEO Office but not allege retaliation
in the instant matter until September 2009. The record also included
several emails between Complainant and Agency officials from July through
August 2009, however there was no reference to the EEO Office or pursuing
a new complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Complainant’s counsel on appeal argued that Complainant attempted to
raise the instant matter with the EEO Office, however, the EEO Office
failed to assign the matter to a Counselor. As such, Complainant
claimed that it was the Agency that created the delay. We note that
Complainant’s counsel failed to provide any evidence such as a sworn
statement by Complainant in support of his claim that he had been
contacting the Agency’s EEO Office. The Agency, on the other hand
provided an affidavit showing that Complainant’s contact was actually
September 11, 2009, however, it was erroneously recorded as September 3,
2009, in the Counselor’s report. Based on the evidence within the
record and giving the benefit to Complainant of the earlier recorded
contact date of September 3, 2009, we find that Complainant’s contact
was beyond the 45 calendar days. As such, we find that the dismissal
pursuant to 29 C.F.R. §1614.107(a)(2) was appropriate. Since the
Commission affirmed the dismissal pursuant to 29 C.F.R. §1614.107(a)(2),
we find no reason to review the dismissal of the complaint pursuant to
29 C.F.R. §1614.107(a)(1) for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2011
__________________
Date
2
0120100971
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100971